16. CHAP. XIV. Of the office of Magistrates, especially in exercising of Judgment.

16. CHAP. XIV. Of the office of Magistrates, especially in exercising of Judgment.

CHAP. XIV. Of the office of Magistrates, especially in exercising of Judgment.

P rinces for the most part in the time of great quietness, as though they had made an end of their labors, use to give themselves to sports and to pleasures. For so Alexander, when he had overcome Darius, was made feeble through riotousness. But far otherwise did David behave himself. For he thought it not enough to have conquered his enemy: but thought that the private evils and injuries at home belonged also to his office: since that a public-wealth is corrupted, even as is a human body, not only by outward discommodities, but also by inward evils, as it were by certain noisome humors. Yea, and such ought to be the end of war, that peace among Citizens and domestical discipline may be established. And therefore

Justinian in the Preface upon the Institutions of the Civil law: The Majesty of the Emperor (saith he) ought not only to be adorned with arms, but also armed by laws, that each time, as well of war as of peace may be rightly governed, and that the Roman prince may not only be conqueror of his enemies in battles, but also by right course expel the lewdness of malicious detractors, and that he may become as well most religious for the law as

triumphant over his enemies. And the law is, not man's opinion (as some have foolishly thought) but an everlasting precept proceeding from nature being the guide, and from the law. And that which is here spoken as touching nature, that do we much more truly understand of God himself, the author of nature. For that which God hath set down ought to be a law unto us. And that law men do oftentimes understand by some light of nature, and (as Cicero saith) by a long experience of affairs, and government of commonwealths. For things being in such sort marked of wise men, committed to writing, and declared in their kinds and distributed in their parts become at the last a certain Art, or else some similitude of an Art.

Ulpian in the Digestes, in the Title De Jure & legibus, saith that Jus, that is, right, is so called of Justicia, that is, Justice. This agreeth not with the Grammarians. For they affirm that the word Ius is absolute, and that that only is just, which is done Jure, that is, by law or right; so as they think that Justicia is derived of Jus, but not Jus of Justicia. But these things I pass over. This is certain, that that thing is first which expresseth anything: and the next is that which executeth and worketh that which is expounded. That did Aristotle call δικαίωμα καί δικαιοπράγημα, which is a remedying of injury. Then followeth a certain habit and proneness of doing whatsoever is expressed. This may hereby also be proved, that in all Arts there is first a matter to be wrought upon, then a science. For number is first before Arithmetic, and song before music, and everything that may be known, before knowledge thereof. Wherefore right goeth before justice. For δικαιοσύνη, which is righteousness, is as it were δικαίου σύνεσις, that is, the in being of right. I know there be some which defend Ulpian, and say that he considered not the very nature of things in themselves, but so as it is brought forth and breaketh out into Act. But how soever it be, the matter is

not of great weight. A Prince ought to take special heed that he minister justice, and that he do it with a good mind and justly. For it is not sufficient that some good thing be done, unless the same also be done well. And this who so do, Ulpianus saith they may be called Priests. For they be Priests and presidents of the laws. And laws be holy things; as it is in the Code De

Legibus, in the law Legis. Wherefore to give sentence, and to speak law, is a holy thing. That sentence which is written: namely that David did execute justice and judgment, some do so expound it, as they understand, that he did not pronounce all things out of the written law, but even much according to equity and reason: since that also is to do justice. But for equity and reason there is no place, except where nothing is provided for by the laws: that is, where neither reward of well doing, nor punishment for wicked acts is expressly appointed. And it is specially to be noted, which is added, namely

To all the people. For that betokeneth that he did execute judgment sincerely and truly, without respect of persons. And this is it so to bear rule as thou mayest be a help to the people. Solomon in his proverbs: By justice

(saith he) shall the kings seat be established forever. Contrariwise, Tyrants because of their iniquity shall soon be taken away. Howbeit to execute justice is manifold and hath many parts. For it behooveth both patiently to hear, wisely to know, uprightly to give sentence, and courageously to do execution: Considering that many do oftentimes judge rightly: but yet for want of courage they only have their sentence in papers. We must take heed that the guilty be punished, that discipline be established, that good laws do flourish, that good manners may be preserved. This virtue is most profitable, not only in peace but also in war. These things ought a Prince specially to do. For he should be as it were a certain living law. But contrariwise they do wickedly which think that the judgment of causes do

nothing at all pertain unto their office. Such was Anthonius Caracalla, who would never give judgment. And unto Adrian when he excused himself that he was not at leisure to help a poor woman, it was answered: Then I would not have thee to bear rule.

That the charge of Religion belongeth unto Princes.

2. But thou wilt say: Is it lawful for Princes to determine of Religion?

Undoubtedly it was lawful for Saul to abandon Witches and Soothsayers, since God commanded them to be taken away. But they which say that Profane Princes (as they call them) ought not to deal in these things, they provide very ill for the safety of the Church. For what if a Pastor become a Wolf, who shall take him away but the Magistrate? Or if the Bishops as it happeneth govern not according to the dignity of the Church nor by the word of God, who shall punish them? But King Ozias (they say) when he would sacrifice was stricken with a leprosy. And Uzza when he had put his hand to the Ark that was falling out of the Cart, was stricken to death.

Wherefore Princes (say they) ought not to intermeddle with these things.

What shall they then do? They feign that in the Church there be two great lights, and that the Pope with the Bishops be the greater light: and that the Emperor and kings and Magistrates be the lesser light: These ought to take care, that is as much to say, as destroy their bodies, but the other the souls.

So would they have Princes to be only certain herd men to pamper the body.

But the very Philosophers do not so absurdly judge. For Aristotle in his Politics saith, that the office of a Magistrate is, to provide that the people may live well and virtuously. And no greater virtue there is, than Religion.

And God commandeth in Deuteronomy that the prince should write out for himself the book of the law, not only for himself to keep, but also to compel others to keep it. And the law containeth not only civil government, but also

Ceremonies and the worshipping of God. And whereas the law is distributed into two tables, both of them are committed to the power of the Magistrate. Moreover Paul saith, that the Magistrate standeth in the stead and place of God, and that every soul ought to be subject unto the higher power. From which place (saith Chrysostom) neither Bishops nor Evangelists nor Apostles be excluded. And Augustine against the Donatists:

It were a goodly matter in deed (saith he) if Magistrates should have power to punish adulteries, but might not punish the whoredoms of the soul. And he addeth that kings ought to serve God, not only that they themselves may live modestly and godly, but also that they may bring others unto godliness, and defend the worship of God. In all Arts (as saith Aristotle) there is a certain respect unto the principal Art. For example, the Art of Riding commandeth the Sadlers craft. Also the Art of Navigation is above that Art which maketh Oars and sails, wherefore seeing the office of a Magistrate is the chief and principal science, he ought to rule all the parts of a commonwealth. In deed he himself exerciseth not those Arts, but yet ought he to see that none do corrupt and counterfeit them. If a Physician cure not according to the prescript of Galen or Hippocrates, or if an Apothecary sell naughty and corrupt drugs, the Magistrate ought to correct them both. And if he may do this in other Arts, I see no cause why he may not do it in Religion. So Hezekiah, Josiah, David, Solomon, Constantine, and Charles showed very well that religion belonged unto their charge. Ozias was stricken and that justly. For God appointed him to be a king and not a Priest, he notwithstanding contrary to the commandment of God would offer sacrifice. But if he had corrected the Priest when he offended, or had made him do his duty, there should not any evil have happened unto him for that matter. Uzza was stricken unto death because he rashly laid his hand upon

the Ark. The Levites ought to have carried it upon their shoulders: nevertheless they laid the same in a Cart. And he was punished for laying hold upon it when the Cart staggered.

3. Howbeit because the power of a Prince is feeble and without limits, therefore he hath need of many eyes, many hands, and many feet.

Wherefore it is described by whom David ruled the commonwealth, not only in profane, but also in Ecclesiastical affairs. Joab being a valiant man, and skillful in the art of war, the kinsman of David, and of an approved faithfulness, had the rule and government of the wars. That office was due unto him by promise, because he did first smite and vanquish the Jebusites.

Furthermore David, to the intent that nothing should be done unorderly or be forgotten: he would have a recorder or master of the requests, to put him in mind of causes both private and public. Him the Italians call

Referendarium: The French men, Maistre des requests, A Master of the requests. Afterward he bent his mind to Ecclesiastical affairs, and agreed together two families of Priests which were at variance. For those (as it oftentimes happeneth among Ecclesiastical men) contended for the principal place. For which, although there be wont to be great debate between profane Princes, yet nowhere greater than between them which ought most of all to contemn these follies. The two families of Ithamar and Eleazar contended between themselves for the high Priesthood. And least we should think that there were two high Priests, we must understand that there was only one. Abiathar was he, whose son Ahimeleck, David made equal with Sadock, that they two might be next unto the high Priest.

Howbeit some think that those two were as the kings chaplains, that wheresoever he should be, either at home or abroad, he might always by them ask counsel of the Lord. Afterward in the time of Solomon, Ahimeleck

was constrained to give up his place, and instead of him came Sadock. God had then long before commanded that the Priests should be chosen out of the family of Aaron: So as David admitted not other families, but only followed the prescript rule of the law of God. This would not the Pope at this day suffer, to wit: that the Emperor should ordain orders among Bishops and cardinals. And yet nevertheless David did this, and thought not that he did anything against his own office. David took the shields of Gold of Hadarezer, and whatsoever Gold, silver, and brass he had gathered out of Beta and Berothay and of King Thoi, he consecrated all wholly unto the Lord. So in the book of Numbers, what money soever the Israelites took from the Moabites they did consecrate to the tabernacle. Rightly did David, and as it became a godly King. For although he were prohibited by the Kings law that he should not heap to himself treasures, yet was there no let but that he might seek for and keep those things, whereby the Temple of God might be built and adorned. Yea and Moses commanded all the vessels of the Tabernacle to be made of the spoils of Egypt. God had before forbidden David that he should not build him a Temple, yet he forbad him not to gather together the stuff for that building. Godly Kings employ all things to the building and beautifying of the Church of God, and in the meantime, contemn not the outward ornaments of Temples: but the wicked

Nebuchadnezzars, and Dionisi do pull away all, even with a contempt of God. Neither is it any marvel: In minds that be unlike, the endeavors be unlike also. Howbeit David and other Princes, to whom this care belonged, meant to signify nothing else save that they allowed of the worshipping of God. This also do the Princes of the Papists at this day, and ever have done, and that oftentimes of goods evil gotten. But David carried away these things from the Enemies, yea from those enemies, whom he knew to be

condemned and judged by God, that he might not seem to have done anything against the law of God. The people for adorning of the temple brought many vowed oblations, much rather behooved it kings to do the same. The Ethnics also consecrated their goodly spoils unto Jupiter

Feretrius: and whatsoever they had taken from their enemies, they committed a part thereof to their gods. These things may be a sufficient argument that David took not this war in hand for covetousness sake, but to augment the glory of God. Even so Christ, our true David, when he had spoiled the house of his strong and armed enemy, turned all his spoils unto his own use: and of them which he had before held captives, made some

Apostles, some Evangelists, some teachers: and good Arts, as Logic, Rhetoric, and Philosophy, which before had served Devils, he employed unto the buildings of his Church.

4. Doubtless clemency is a goodly commendation and worthy for princes.

Which also they themselves understanding do place it almost in the first front of their Tithes: and of their subjects will be saluted by the name of Most merciful. And by three reasons they should be led to be gentle. The first is, because they be God's lieutenants upon the earth, and therefore above others ought to imitate him. For, to have mercy and to forgive, is proper unto God. Secondly they rule and govern men, not wild and brute beasts. Wherefore it is meet they should deal courteously with them. Lastly by gentle dealing, they get themselves the goodwill of the people.

Wherefore Solomon in the 20th chapter of the Proverbs said: That by mercy is the kings seat established. And Cicero when he praised or flattered Caesar said: that his valiant courage, his arts of war, his victories and his triumphs, were common unto him with other soldiers, but that his clemency, his sincere and perfect goodness pertained to himself. Therefore clemency is

worthy to be praised, but yet not always to be used: For there is a time which requireth severity. Clemency is a certain affection of the mind, whereby we are prone to forgive, and turn aside from revenge. And the same (if it be not against justice, if it do not violate right and laws, nor yet breedeth a confusion of things) amongst men it is the matter of virtue: but if so be that it bring in those things which I have recited, now is there no virtue there: but it doth degenerate into vice, and is changed into slackness, negligence, and foolish pity. Thus sinned Ahab that would be more pitiful than God. So also sinned Saul, which spared Agag the king of the Amalekites, contrary unto that which the word of God had prescribed. So then this their pity, is no virtue but a vice, seeing it hath no justice joined with it. David also was sometime infected with this vice what time as he was over-pitiful towards Absalom his son, and towards Ammon.

Whether it be lawful for Magistrates to let the guilty pass unpunished.

5. This sentence is plainly gathered out of the Scriptures, that the Magistrate ought not to set free those whom God hath delivered to be punished. But some man will object, that the Moabites, Ammonites, and Edomites, which ill vexed and betrayed the Hebrews who fled unto them, when they were spoiled by the Chaldeans, were sharply rebuked by the Prophet Amos though notwithstanding God had brought upon them that calamity. Yea and the Chaldeans themselves are reproved by the Prophet, because they dealt ill with the Jews. I answer, that the Jews were not delivered to the Moabites, Ammonites, and Edomites to be punished, but unto the Chaldeans, as the Prophets have prophesied. Seeing then God revealed nothing at all unto these people as touching the destruction of the Jews to be executed by them, they were justly reprehended, and condemned

of cruelty. For seeing they were their neighbors, and after a sort a kin, they showed them not such courtesy and entertainment in that their calamity, as they ought to have done. But the Chaldeans are therefore reproved, because they exceeded measure against those which were overcome. Neither became they cruel against the Hebrews, to satisfy the will of God, but to fulfill their own hatred and ambition. But what shall we say to Augustine, who would have those that were guilty and condemned, to be delivered and yielded unto him by the presidents of Africa, so they would promise to amend and repent? For he said that this was a part of his duty, and unless he obtained what he desired, he was offended, and complained that he could not obtain that of authority which belonged to his office. Macedonius who had given into his hands one that was guilty, wrote unto him, that he marveled how this should belong unto the office of Bishops, and he alleged his reasons why it should not seem so to be. Wherefore seeing there be

Arguments both on the one part and on the other, I have thought good to set them down to affirm what must be determined of the question. And for this end is this Treatise: because the guilty are delivered by God unto

Magistrates, to the end they should be punished by the Laws: therefore it seemeth not in their power to let them go unpunished. But Augustine taught otherwise.

6. And in the first place I purpose to allege his reasons. The first is, when repentance cometh, and promise of amendment, sins (as he writeth) are become more venial or pardonable: wherefore somewhat of the severity of punishment must be forgiven. Secondly the Magistrate in punishing, ought to seek nothing else than amendment or correction of faults. And this is the best way of amending, that he which is guilty should repent and purpose to live better. Thirdly after this life there is no place of amendment and

correction: and it is dangerous, lest if they should straightway be put to death, they might fall into everlasting punishments which should never have end, therefore life must be granted them that they may repent and amend.

Fourthly it becometh princes to imitate God, and he destroyeth not the ungodly, but maketh his sun to rise upon the good and bad. And he suffereth and cherisheth them with most ample benefits, whereas notwithstanding he very well knoweth both what they are and what they will be. So that Princes should much rather pardon offenders, seeing it is unknown unto them what manner of men they will become at the length. He confirmeth his reason out of a place in the Epistle to the Romans, wherein it is said: Doest thou not know that the goodness of God leadeth thee to repentance? We (saith he) do imitate God, when we would not have the guilty to be destroyed but to be kept unto repentance: Princes also should follow this. God doeth not punish very many in this world, yet doeth he otherwhile bring punishment upon some, least he should seem to have cast off the care of the world. But he suffereth many to go unpunished, that we may persuade ourselves that once at the length shall be the general judgment, wherein according to their deserts he will punish them that be obstinate and grounded in sins: but those which promise repentance and amendment, he giveth to the Church. Fifthly the heavenly father hath commanded, that we should love our enemies: but they which are condemned to death for their misdeeds, be enemies of mankind: so according to the word of God we ought to bear them good will.

But we can wish no better to them than salvation, that is repentance, amendment and eternal felicity. Sixthly, in the Church, they shall not straightway be admitted unto the holy supper. First their mind shall be tried by that public repentance, they shall pour out tears in the holy congregation, they shall crave the aid and prayers of the Church, they shall fast, they shall

go in the habit of Mariners, and they shall exercise themselves in godly works. What else is this than to punish themselves justly? Wherefore those whom ye shall let go, shall not escape among us unpunished. Seventhly that which we desire is easy, not only possible unto you, because ye have the power of life and death over them for whom we entreat. Therefore, when ye yield them unto the Church, ye depart not from your duty. For you exceed not the charge committed unto you. Eighthly: that which we require of you,

I would not have you to doubt, but is for your own profit. For ye as well as other Christians have need of mercy, unless ye think yourselves altogether free from sin. Then set them free unto us, that your fault may also be forgiven by God. Ninthly it is meet that ye should follow the example of Christ. He acquitted the adulteress which was guilty of death, he condemned her not: only he exhorted her to amendment, saying: Go thy way, sin no more. Tenthly: After all this, consider ye the fact of Joseph the husband of the blessed virgin: He being otherwise a just man, was so moved with mercy towards his spouse, as although he knew her to be great with child, yet would he not put her to open shame or by accusing her of adultery, abandon her to extreme punishment. Again ye ought to have a consideration of man's infirmity, which is such, as being well weighed, it may not only assuage the grief of the accuser, but also the rigor of the Judge. Furthermore ye civil men, which would be accounted honest, boast everywhere as a token of good nature and gentleness, that ye had rather defend in place of judgment than accuse: therefore ye ought not to be offended at us, if we seek the preservation of them that be guilty.

Nevertheless, between intercession and defense, there is a great difference:

For he that defendeth that which is laid to the charge of the guilty, affirmeth it to be well done, the which we do not. For neither do we comfort and

excuse thieves and murderers and other malefactors, but confessing that they have offended, we make intercession for their safety. Moreover, the manner of civil men is, that if they see broils risen in another man's house, for that the father would punish the son, or the husband his wife, they come between them and entreat that the matter may be pacified. And what they themselves would punish in their own house, they entreat that it should not be punished in the family of another. Hereunto, even you yourselves which be rulers of the people of Rome, do sometime in the Ecclesiastical Synods, make intercession for some priests, that they be not more sharply dealt withal and according to the severity of the Canons of the Church.

Wherefore that which you grant unto yourselves towards the Church, grant in like manner unto us to use at your tribunal seats and at your executions.

Last of all, we while we crave of your power this kind of obedience, chiefly have this regard, that unto the ministry of the Church, and unto the word of truth which we preach, we may win the love and goodwill of the people.

For when they shall perceive that the Ministers of the word of God and the pastors of the Church, do so desire and thirst after the salvation even of most wicked men, they cannot choose but love them, and gladly give ear unto them.

7. And this last Argument, as it seemeth to me moved him to make these demands. Yet do I not see that other Bishops, especially those of the East part, were earnest in this matter, so far as I might discern by the most ancient Ecclesiastical histories. But as touching the salvation and repentance of the guilty, there was no cause why the bishops should so much disquiet themselves, if the Ministers were brought to the prisons of the condemned men, before they were put to execution. For by exhorting them, by warning and teaching them those things which serve unto

repentance and amendment, they might as they do in our days have brought them by the help of God unto acknowledging of their sins, and sound repentance. But I perceive not that this wholesome ordinance in times past was in use in the Church, especially when the Emperors now professed

Christ. Now that we have rehearsed the reasons of Augustine, I think good to admonish you hereof, to wit, that the letting go of Benhadad which is declared in the 1st book of kings the 20th chapter, is not in all parts conformable unto the pardoning which the Bishops required of the Magistrates for them which be guilty. For neither any high priest, nor priest at all made suit for Benhadad. Further he himself made no promise of repentance or amendment, yea, and there was nothing at all specified concerning Religion. Yet there remaineth some likelihood that on both sides he is let go, whom God had delivered unto the Magistrate to be punished.

8. But after the reasons of Augustine let us hear the Arguments of Macedonius. First he said: In this letting go, we seem to allow that which we would have punished, but it is sin that we would have punished: therefore we seem to allow of sin itself. So then we make ourselves guilty, because the allower and author of the offense are both alike culpable, wherefore we are subject to the same kind of offense that they be whom we so let go. Augustine answereth: We while we crave to have those yielded unto the Church, seek it not to the end that sin should go unpunished, but rather amended. Even as God when he maketh the Sun to arise upon the wicked, doeth it not that sin should escape unpunished, but (as the Apostle saith) by his goodness provoketh them to repentance. Moreover we would in any wise that sins should be punished, howbeit by another kind of punishment, that is, by repentance, not by the sword of authority. Secondly

Macedonius objected: The sword of the civil power will be in vain: to what

end should there be prisons, Gallows, hangmen, executioners, and such like, if guilty persons as you would, should be let go unpunished? But Augustine saith, that these things are not in vain: because they punish the impenitent and obstinate: but others which promise that they will amend their life, your power and instruments of punishments do bring them hereunto. For unless they should be terrified by this means, they would continue in their mischief. So as our intercessions are nothing at all against your severe power: nay rather if the same were not, our intercessions should have no place. Moreover for this cause are they available, that we may lead a peaceable and quiet life among the wicked. Thirdly Macedonius argued:

The punishments that we lay upon the guilty, are either just or unjust: if they be unjust, let them be removed and let them no more appear in the commonwealth: but if they be just, wherefore do you hinder them with your intercessions? Augustine answereth: They be just against them which be stubborn and obstinate in their sins: but when there cometh promise of amendment and repentance, forsomuch as the guilty person is changed, the punishments must also be changed or taken away. Hereunto Macedonius addeth: They which are so delivered, it cometh often to pass, that they afterward fall again into the self-same vices, or else commit those that be more grievous. Augustine answereth: Seeing this is not done by our fault nor will: neither do we make intercession for them that they may become such evil persons again. Macedonius said yet further: Others being corrupted by this example will more vehemently run astray, and so all things will be filled with theft and robberies. Whereunto Augustine said:

God also will easily sustain this kind either of reproach or cavillation. Why do we not also say that evil men are corrupted to commit daily more and more grievous sins, through the good will of God, whereby he suffereth and

cherisheth the wicked? Lastly Macedonius had respect unto the losses and hindrances done unto Citizens, and said: It will by this means come to pass, that things taken away by theft and robbery will not be restored. Unto this

Augustine saith: It would in no wise be so: for that is reckoned to be no true repentance wherein other men's goods are retained: neither is the sin forgiven unless there be a restitution of the thing stolen. But yet he showed after what manner: namely that if it may be or if the guilty man have other men's goods in his hands. Howbeit otherwhile these robbers and thieves do straight way consume those things which they have naughtily gotten, do riotously waste and destroy them, and when as there remaineth with them not one jot thereof to restore: when they have changed their mind, they must be given to the Church, least they be perpetually afflicted without a cause, and their repentance be hindered. These things have we heard to be spoken of Augustine and Macedonius, according to both parts of the question propounded. I might add, that James in his Epistle wrote, that judgment without mercy remaineth unto him who hath not showed mercy: and also that Ezekiel who under the person of God saith: I will not the death of a sinner, but rather that he be converted and live.

9. Some man perhaps will marvel why Augustine set not down among his reasons, that the guilty sort must also be spared because they be ignorant, or be stirred up by their lusts, or frail affections, and therefore do fall into so grievous offenses. Hereunto I answer: Perhaps Augustine comprehended this kind of Argument when he said: That man's infirmity must be considered. And certainly, to be ignorant and overcome with lusts pertaineth to imbecility. Howbeit we might otherwise answer; that he prudently omitted this, because he would not sustain the person of a defender, but of an intercessor. It was none of his part to minish or extenuate sin: He

confessed those things to be naughtily done for the which he entreated, but he craved a remission Furthermore they which committed those things which they knew to be punishable by the public laws, knew them to be sin.

Neither can they which be stirred up with lusts be compared (as of some they be) unto them that be frenetic and out of their wit, who are rather to be pitied than punished, for as yet reason reigneth in those men, but in the other it is extinguished or else stopped. Moreover the frenetic persons do not procure the evil unto themselves, but they which obey lusts, do otherwhile stir them up: they seek occasions, they shun them not nor yet wrestle against them, neither do they repress outward actions; which they might do although they were not yet regenerate. Wherefore the comparison is very unlike.

10. But because the reasons of Augustine (under correction of so notable a man) be not firm, therefore must they be confuted. Which as it is easy to be done, so I judge it very profitable. First he said, that sins are more pardonable, as he termeth it, when they have promise of amendment and also repentance joined with them, and therefore ought no longer to be punished severely. Unto this we answer, that the pardon which followeth faith unto which is adjoined repentance is obtained of God, and pertaineth not to the civil Judge, who hath respect to a thing already done, not unto those things that be present. He added, that the severity of laws seek correction, but that those men are corrected by amendment of life and repentance, and that therefore nothing else must be anymore wrested from them by violence. But correction is sought for by the Magistrates, not only for his cause that is punished, but also for other men's sakes, which are terrified through beholding of the punishment, so as they may desist from that kind of sin, which they see is so severely punished, or else to beware

that they fall not into such heinous offenses. Wherefore it is written in Deuteronomy, the 13th chapter, as touching the stoning of an Idolater: To the intent, that the Israelites may see and fear. Augustine further argued, that after this life there is no other place of amendment and repentance: and that therefore there is a danger, least if they that be guilty should after this manner be suffered to depart out of this life without repentance, they would fall into those punishments which shall never have end. To this I answer,

That repentance is not denied unto them which he condemned: For time and space of repentance is given them: and there are appointed unto them pastors and Ministers of the word, to admonish them diligently of salvation, and to drive faith and repentance into their minds. Notwithstanding it seemeth that Augustine in this place attributed over much unto that public repentance, as though the guilty sort, if they should be put to death without it, might not have salvation. But the matter is not in such sort, and those things which be there spoken, if they be somewhat narrowly considered cannot stand together. For seeing that repentance of that kind is not often renewed, least (as Augustine himself confesseth) so notable a remedy should through much frequenting become of no estimation, what shall we do unto them, which after that repentance fall again into the self-same and more grievous crimes? Shall we bid them to despair? No verily. If they believe sincerely, and that they are again penitent, no doubt but they shall again obtain pardon of God. And if that the sins committed after the same public repentance may be forgiven without it, why shall not those sins also be forgiven without it which were done in the former time? The grace of God is not tied to those rites and ceremonies which are abolished in our age.

In the stead of public repentance they have placed auricular confession, which cannot be denied but was the destruction of the west Church. Further

those words of Augustine are to be noted, to wit, that after this life, there is no place of amendment or repentance. For so is Purgatory taken away, if that those which depart from hence, are either exalted unto glory or else do fall into punishment that shall never have end.

11. That doubtless which was brought as concerning the imitation of God is of small force, because his counsels far differ from ours. He is exempted from all laws, and governeth all things by his own free will as it pleaseth him: Howbeit we live under laws, and must do not those things which are seen but which are prescribed. God must be imitated of us, but yet so much as our condition and the laws laid upon us will bear. To the proof that he brought out of the Epistle to the Romans: Because God of his benignity leadeth evil men unto repentance, it may also be said, that Princes do lead such guilty ones to repentance when as with singular benignity and gentleness, they make the way open for the Ministers of the word of God to come unto them. God in very deed commanded us to love our enemies, howbeit that must be understood, that we do it so much as the laws and the safety of the commonwealth do permit. Is it not also commanded us that we should account as Ethnics and publicans, those rebellious and obstinate persons, which will not hear the Church? And yet though we do this we love them well enough. In like manner it is lawful for the Magistrate to slay the guilty, and therewith to keep charity towards them. It was said also, that these escape not unpunished, seeing they punish themselves in the Church by fasting, weeping, praying, and by exercising themselves in good works.

Some punishment indeed they sustain, yet not so much as the laws require, seeing it is not lawful for them to kill themselves, when as nevertheless by justice they ought to be put to death. That Argument derived from a possibility and easiness, because Magistrates have power of life and death

over the guilty, is not firm, for the powers which be the governors of the world have their sword from God to take vengeance of them that be guilty and to defend honest and good men, and not that they should use the same at their own will and pleasure. And it is certain that they do not their duty, if they let go the guilty unpunished, seeing they have received authority to punish them. He said moreover: ye also that be Magistrates, have need of the mercy of God, seeing (even like other men) ye pass not over this life without sins: wherefore yield ye unto others, that it may also be yielded unto you. Nevertheless it must be considered, that every man ought to give, not that which belongeth to another, but that which is his own. Howbeit, whatsoever pain and punishment is forgiven to the offender, it is not given of the Magistrates goods, but it is given either of the party harmed, or else of the public discipline and severity of the laws. Which things, if they be not kept and remain safe, there followeth an incredible confused order.

12. And as touching that which is brought of the adulteress, whom the Lord Jesus Christ absolved, it serveth not unto this present question, because while Christ lived upon the earth, he had no Magistrates office, but was an interpreter of the will of his Father, and he ministered the word of God unto the people. Wherefore it was not his part to condemn the adulteress to death, seeing he took not to him the sword upon the earth.

Also he could not prosecute the accusation of her, seeing he took her not in the present crime, neither could he prove the crime by witnesses: but as a Minister of the word of God, he first gave a warning of repentance unto the accusers: after that, according to his office he warned the adulteress that she should sin no more. So that we may not gather hereby that the fact of Christ, either diminished or hindered Magistrates from the lawful punishing of them. Neither doth the example of Joseph the husband of the blessed

virgin anything more belong unto this matter, for he also was no Magistrate.

But he would not bring Mary into obloquy, because he was just. These words have a double sense. First Tsedec, sometime among the Hebrews is mercy, and therefore some think that Joseph spared Mary whom he suspected of adultery, because he was of a merciful and pitiful mind: wherefore he determined to put her away, omitting the accusation of the fault. This interpretation if we follow, we cannot otherwise but condemn

Joseph of too much tenderness and slackness, that would not provide to his power, for taking away the evil of adultery out of the Commonwealth of Israel, according as the law of God had commanded. Or else we will say, that Joseph, seeing he was properly and truly just, would not defame the adultery of his wife, because he was uncertain of the manner of the crime.

For as well it might be, that the maid sinned before they were betrothed as after. If she had fallen after they were betrothed, she was held for an adulteress: but if before, she might only be accused of whoredom. Which crime in very deed was no crime of death: yet he that had done the dishonor to her, should of necessity marry her: yet so notwithstanding that her parents had given their consent. Wherefore seeing he was just, he would not accuse Mary of adultery, because he was not sure that it was adultery. And so to unwind himself out of these perplexities, he determined to put away his wife. But that this might not be, God forbad it by an Oracle. Briefly, he was no magistrate. Further that kind of the crime did not appear. Howbeit they of whom we now entreat, be Magistrates, and they must give just punishment for a fault that is known, and not for that which is uncertain.

13. Moreover Augustine willed that man's weakness should be considered: for if that be somewhat diligently weighed, he thinketh that as well the grief of the accuser as the rigor of the judge shall be broken.

Profitable and very godly is the admonition, because it is every man's part to sorrow, that the nature of men so nobly instituted, is fallen headlong into so great an imbecility. Howbeit, we must not be led by this sorrow

(although it be just,) either to diminish or to corrupt public justice. Besides forth, it was inferred that good men say, they had rather defend than accuse before the judgment seat. I know this hath been often boasted of, but I affirm that both the duties be necessary unto the commonweal, and that sometimes the one, and sometimes the other is more to be desired as may seem most convenient for the party accused, for the time and for the place.

For he that accuseth helpeth the Magistrate, who cannot see all things by himself. He also that defendeth the party accused, helpeth the commonwealth: he instructeth the Magistrate against the vehemency of accusers, or their slanders or cavillations. Nevertheless Cicero said when he accused Verres, that he defended Sicilia. And so earnestly did he labor, that his accusation should be accounted for a defense. And as for them which run unto families, among whom they perceive either trouble or discord to be raised, if they do it with this mind, that by their coming they may provide least the good man of the house should exceed measure, either in punishing his servants or children, or in correcting his wife, they are to be praised: but if it be to the intent they may take away all kind of chastisement and discipline, they behave not themselves well. Neither also did he well, which for a priest made intercession to the Ecclesiastical Synod, if perhaps he meant that an adulterer, a whoremonger or a drunkard should be unpunished, and honest Canons of the Church to be neglected for his sake.

But if he only sought, that he should not be punished over sharply or more than was meet, and that he should be gently handled, so far as Ecclesiastical discipline would suffer, he shall not be blamed. In deed Paul made entreaty

unto Philemon for Onesimus, which had fled from him. But that servant being now renewed in Christ returned of his own accord unto his Master.

He was no captive, neither was it a crime of death: Wherefore this example belongeth nothing to the cause which we have in hand.

14. There remaineth the last Argument, which as Augustine thought was of very great weight: namely that it would win favor and good will to the word of truth, which is preached by the Ministers of the Church. The reason in deed is plausible: For the Church of Christ seemeth herein to be amiable and loving, in that it hath careful pastors, and such as be very desirous of the salvation of Christians, and would gladly have their offenses, though they be grievous to be forgiven them. Thus do some say, that Constantine was allured unto Christianity, because our Bishops had promised him pardon for a parricide committed, for he had caused his son to be slain. But whether this be true or no, I refer it to the Authors. That goodwill and favor must be won unto the holy Gospel, I myself also am of that mind, but yet not by such a way, as the laws and discipline, (which be the things whereon the commonweal doth depend) should be loosed. Grace undoubtedly is preached in the Church of Christ, as touching reconciliation with God, which is freely granted unto believers without works: but yet not to this end that the guilty sort should be plucked away from Magistrates. This did not Christ nor the Apostles at any time: neither do the holy scriptures either in the old or New Testament command any such thing: nor yet is it read that the holy fathers in old time did set forth any such example. Augustine was very mild of nature, and whereas this thing was already usurped in his time in the Church, and especially in the Church of Africa, he would not have it abrogated. For which cause in that Epistle, he gave place both to his own nature and to the cause. And James when he saith, that Judgment without

mercy remaineth to him that hath not showed mercy, speaketh not of Magistrates, but he earnestly putteth other men in remembrance to forgive injuries and offenses: which can never sufficiently be urged among Christians. And Ezekiel when he saith: I will not the death of a sinner, but rather that he convert and live, writeth it of God, who is free from laws. But earthly Magistrates must judge according to laws. Yea and good princes for their own part would not the death of sinners, but their conversion, and wish them life, and would bestow it upon them, but yet so far as the laws whereof they be Ministers do permit them.

15. Now there remaineth that I declare what I am to say as touching this controversy. First let us make a distinction between inferior Magistrates and superior, from whom there lies no appeal, and who have absolute dominion.

The inferiors must in any wise judge according to those things which are prescribed unto them by superior Magistrates. But the chief Magistrates, who both may interpret the laws where they be obscure, and also have committed to their judgment those things, touching which there hath been no decree: three things let them, that they cannot forgive punishments. First the accuser, that is the party harmed, and which complaineth at the tribunal seat. For the Magistrate is the keeper of Justice, wherefore he is bound by his office to give every man his right: which unless he do, he is no lawful

Prince. Secondly the disturbance of the commonwealth. Aristotle in the 5th book of Ethics the 5th chapter saith, That if Citizens see that the injuries done unto them are not recompensed by punishments, they think that they live in servitude, and that they be not now Citizens but bondslaves. But admit that the accuser be pacified, yea and that he entreateth for the release of the punishment of him that is guilty, and saith that he is satisfied, is it yet free for the Prince to forgive the punishment? No forsooth. Because it is his

part to defend the safety of the commonweal: which continueth not, unless that heinous offenses be repressed by punishments. While an evil man is punished, others do fear, but the impunity of one or two maketh evil men the more bold. Wherefore if the Prince neglecting punishments slack the severity of the laws, now doth he not well use clemency but he bringeth in public calamity. The third thing which hindereth him is the laws as well of God as of nature: Further, the laws of men which be honestly and lawfully made. Let him consider with himself, that people have not chosen Princes, which should bear rule after their own pleasure, but that they should be the Ministers of laws. Yea sometimes they take away the rule from them if they govern not according to the laws. The Persians had a certain king called

Cabades, that is glorious, who when he favored adulterers against the prescript rule of the laws, and had made an unjust, law, namely that adulterers should not be punished unless they had been perpetrated by violence, the subjects took the matter in so ill part, as they cast Cabades out of his kingdom. But it is commonly said: that Princes should be inclined unto mercy and clemency: I grant, but yet so far forth as the right of the party offended, the public commodity, and prescription of the laws will permit. Moreover this specially taketh place in doubtful things, and when laws are to be interpreted, and when the crime is of that kind, as a punishment is not appointed to it by the laws. So then it is not well to desire of chief rulers and Princes in judgment, that wicked men should be let go unpunished. But and if thou wilt say, that they now repent themselves, they will amend their life, and they be changed: I answer, that the Judge respecteth not what they be now, but what they were when they committed the wicked facts. Whereupon Aristotle distinguishing the kinds of causes: unto the kind Deliberative he assigned the time to come: for they which do

deliberate, take special heed unto that which shall come to pass if this or that thing be done. And unto the kind Demonstrative he ascribed the time present. For those things which be praised or dispraised, are set before our eyes as though they be now done and be present. Unto the Judicial kind he assigneth the time past: because it is a Judges part to inquire whether it be done or no, and whether it be well or ill done.

16. But least I should seem without manifest testimonies to have determined of the controversy, I will first allege what God said unto the Israelites before the law was given unto them. He that shall shed man's blood (saith he) his blood shall be shed by man, because he is made according to the Image and similitude of God. In the law of Moses, the wellspring of punishments was that voice of the Lord: Take thou away the evil from the midst of thee. Of the Idolater he said: Spare him not, take no pity of him, neither keep thou him secrete, the 13th of Deuteronomy. Of the willful murderer: Let him die. For a slaughter by chance, there were assigned Cities of refuge: But he which had killed one of set purpose, he said not, Let him go, and give him to my altar: but he saith: Pluck him away from my altar. The self-same thing also is showed out of the New

Testament. We have in the Epistle to the Romans, If thou do evil, fear, for he beareth not the sword without cause, for he is God's minister and revenger. Then if God appointed him to be a revenger, it is of necessity that he should punish wickedness. The same thing we have among the Civil laws, whereof I might allege many, but I will content myself with three, which are in the Digestes, in the Title De Poenis. The first is of Ulpian, which beginneth Si quis forte: where it is defined, that a guilty man must be punished, although he shall say that he hath certain secrete things belonging to the safety of the Prince, which he would reveal unto him; neither must he

be sent unto him, because these things be done and feigned for the delay or shifting off of punishment. Nay rather (saith he) such wicked persons should suffer the more grievously, because they hid their secretes so long from the Prince: and because even yet they would not have disclosed them, unless there had been hold taken of them. And if the laws suffer not that executions or punishments be deferred or shifted off for the safety of the prince, which is a great thing in the commonwealth, why shall they forgive the guilty, giving them hope or promise of a better life? Another law is in the same Title, in the Law Respiciendum, and it is of Marcellus, wherein

Presidents are admonished, that they should weigh the matter itself and the cause: and that they should not endeavor to get praise either for severity or for clemency: let light faults be lightly punished, and grievous faults, severely: but yet with some moderation. The third law is in the same Title, in the Law Divi fratres, where it is decreed that the Presidents should not make the sentences void which had been given. These things do plentifully testify that it is not the part of Judges or Magistrates to yield unto intercessors those that be guilty.

Whether the excuse of David wherein he purgeth himself because he punished not Joab ought to be allowed, and whether a Magistrate may well let pass a fault without any manner of punishment.

17. But here must we briefly discourse of a question: whether that excuse of David which he useth in the second Book of Samuel the 3rd chapter, ought to be allowed. For there be Arguments on each part. This brief

Treatise I hope will not be unprofitable. For as Basel saith in the first Epistle: The histories and lives of saints, ought to be unto us as a certain lively Image of the commonwealth of God. For in them we may see, how the law of God at all times hath been observed or neglected. The fact of

David seemeth that it may be defended by these Arguments. First that Joab was gracious and very mighty among the soldiers, and might not be punished without a great tumult, and that David was wary least he should do any great harm to the commonwealth, and raise up more grievous evils, seeing by the death of such a Prince and Captain of the soldiers, the kingdom would be weakened. For so it is written of Honorius the Emperor, when he had at Ravenna killed Stillico the lieutenant of his wars, he cut off his own hands. For after that he was taken away, he did never anything worthy of fame. Further that precept of punishing great offenses was affirmative, neither did it bind at all times. For so are we commanded to come unto the holy assembly, to do alms, and such like: howbeit not always but when the time shall serve. Even so David, although he ought to have punished Joab, yet might he wait a time. Further, although he were then let by the power of Joab, yet was he never unminded to punish. For at his death he commanded his son Solomon, that he should not suffer his gray hairs to descend with peace unto the grave. And Plato saith, that punishments are like unto medicines, and must not be used when things seem to be so desperate as they cannot be cured: and that Princes be as it were certain

Physicians of the commonwealth. Yea and God himself oftentimes differeth punishments although (as Valerius Maximus saith) he recompenseth the slackness with the greatness of revenge. Also Saul when he had delivered the Jabins from siege, and enjoyed now the whole Empire of Israel, and some had persuaded him to put such to death as had before refused him to be king, yet chose he rather to forgive them. David also forgave Semei, and is therefore greatly commended. And Augustine oftentimes made intercession for Heretics unto the Emperors, and not only for Heretics but also for murderers and most ungracious robbers by the high way, and for

Circumcellion's. Lastly, Christ of whom David was a shadow and Image forgiveth all sins, and freely receiveth all men into grace. Wherefore in this fact, he departed nothing at all either from his duty, or from the Image which he represented.

18. Also on the other part there be other Arguments, and those in my judgment much more weighty. First he being the king of Israel, it had been needful for him to have stood to the laws of that Commonwealth. And God in Deuteronomy commanded with most effectual words, that the king should provide that the Law might be distributed unto him, and should always have the same ready with him, and should rule by the prescript thereof. And it was already written in the 21st chapter of Exodus: If one shall by hap or chance kill another, I will assign him a place of refuge: But if he shall do it by laying in wait, or of set purpose, thou shalt pluck him away from mine Altar. Howbeit, Joab of set purpose and by laying in wait killed Abner, wherefore he ought in no place to have been safe. Further it is written in the 18th chapter of Exodus, that they which should bear the office of a Magistrate ought to be valiant men, fearing God, lovers of the truth, and haters of covetousness. Wherefore David in the punishing of wickedness ought to have been valiant, and to have feared the power of none: For this is not to have a kingdom, but a kingdom to have him. And he is had of a kingdom, which for obtaining of a kingdom, neglecteth justice.

Paul saith that a Prince is the Minister of God unto wrath, and beareth not the sword in vain. This duty ought to have been performed by David. In Deut. the first Chapter God commanded the Tribunes and Centurions, That they should not have respect of persons in judgment. For so only the poor and men of low degree should be bound to laws, but the mighty, stout, and noble should escape. But Judges must neither be bent to wrath nor to mercy.

And for that cause in Mars street where judgment was most severely executed, it was forbidden unto Orators to stir up affections: yea rather the causes were also known after a dark manner, least the Judge should be privately touched with the favor of any man. Yea and in the Roman laws in the title De poenis, in the law Respiciendum, thus it is written: The Judges shall not endeavor to get glory either by gentleness or severity. Howbeit in light faults there is permitted some certain inclination unto lenity, and in the greater faults, unto severity, but yet using therewith a moderation of benignity. In which place the gloss rightly observed, that there the rigor of the sentence may be moderated, where there is nothing by name determined in the laws. And in the Code de Poenis, in the law Decurionum, it is written, that the people must not be heard, if they cry that any man should either be condemned or delivered: for that the people is a beast of many heads.

Besides this, the Judge is no other thing but the law itself that speaketh: neither can he by any means seem to be a Judge, if he depart from the prescript rule of the law. And the wise man Sirach prudently admonished: I would not (saith he) have thee to be a Judge, if thou be not able to take away injuries: least thou fear the person of the mighty, and cause an offense to arise to thy integrity. Also it was said unto the king of Israel which had suffered Benhadad the king of Syria to escape out of his hands: Thy life shall go for his life. Thou wouldest not punish, wherefore thou shalt be punished and shalt render an account of other men's wickedness. There followeth of this tenderness and foolish pity, an innumerable sort of mischiefs. The gentleness of Eli both extinguished his family, and in a manner subverted the public-wealth.

19. But thou wilt say, that God doth patiently bear these things: thou sayest well. But consider with thyself, that if inferior Judges so behave

themselves in the Commonwealth, how will the prince take that? No doubt but he would condemn them of treason. And do we think, that God will not take it to be wickedly done, if he see his laws contemned and trodden under foot? David saw a danger to hang over him: But he had the promise of God, and that was not written in the wind or in the water, but was stable and eternal. And what if he had been cast out of his kingdom? Yet God could have reserved him full and whole. Wherefore we see that David was so troubled in that he depended somewhat of men. It had been a hard matter to have punished Joab, yet should he at the leastwise have attempted it. He doth nothing here now, only he complaineth of the power of Joab. In very deed I deny not, but that punishment may sometimes be differed and that fit occasions may be waited for: but to do nothing at all, it was too great a lenity. And surly there be many causes why punishments ought otherwhile to be deferred: as appeareth in the Code De Poenis, in the law, Si vindicari.

First, least the Magistrate should do anything unadvisedly in his wrath. That law did Theodosius the Emperor write at the request of Ambrose, when he was by him grievously blamed and excommunicated, because through a willfulness, and rage of mind he had been over-cruel against the Thessalonians. That history, and cause of the law is set forth in Socrates, and is repeated in the decrees, Cause 11, Quest. 3, the Chap. Apud

Thessalonicam. Wherefore it is provided, that between the sentence given, and execution should be 30 days space. Another cause of delay is, if the woman which should be executed be great with child. Also a servant ought to be deferred until he have made an account unto his Master, and have certified him of all things. The execution likewise of him against whom a thing is examined by torments is deferred, that it may be known whether he stand to his opinion. For men being oftentimes overcome with torments,

confess those things which they never thought. Likewise execution is many times differed, so often as we are to inquire of other crimes, or of them that be privy to things. And these only (so far as I know) may be the just causes of differing punishment. For if a man that is condemned in a province, say that he hath somewhat which pertaineth to the safety of a prince, the Roman laws decree, that he should not be heard, because he seemeth only to seek the delay of punishments. Nevertheless, and if he have anything that pertaineth to the prince, he should have showed it before. But now none of these matters can serve for Joab, wherefor David should not have deferred his punishment so long.

20. Sometime punishment is forgiven, if a man shall offend under 25 years of age. Albeit an adulterer is not pardoned, although he be under that age. And besides this, it must be considered, whether a man have sinned by deceit, or by the provocation of his mind, or by wantonness, or rashly. For in him that hath used deceit or laying in wait, the punishment also is augmented. But Joab used both wicked deceit, and having called Abner after a courteous and friendly manner, slue him even before the public place of judgment, and violated the public faith. Also punishments may be augmented, as we have it in the Digestes De poenis, in the law Aut facta: If a fault be committed by a multitude through sedition, then verily someone man is more grievously punished to the terror of others. By this lenity of David some are after a sort animated unto detestable facts. For afterward

Thieves were so hardy as to kill Isbosethe at his own house: Ammon to deflower his own sister: Absalom to slay his brother Ammon: And Joab himself to kill Amasa. We cannot perceive that David behaved himself on this wise towards others, since he commanded that the Amalekite [which by his own confession] furthered Saul unto his death: and afterward, that the

thieves which had slain Isboseth, should forthwith be slain. It may also be perceived that he somewhat followed his own private affection unto Joab, for he was his own sisters son. But albeit he were not led with any such affection, yet he made a great show thereof. For he that in the selfsame or in the like cause forgiveth one man and punisheth another, cannot seem to be led with the love of justice. David in deed was a man of a gentle and meek heart, yet should he not have polluted that work of God, and have set a color on the vessel which was beautiful of itself. For this was to communicate with other men's sins. What shall we therefore say? David no doubt was holy and feared God: yet so excellent a body was not without his blemishes. Even as there is no day so beautiful and clear but hath his night: so was there never man so holy and perfect in every respect, but was corrupted with some sin. Verily we ought to follow and imitate the virtues of godly men, but not to dissemble their faults.

21. Now will I in few words confute those reasons which were brought on David's side at the beginning. Joab was mighty: what then? Assuredly

David had God himself on his side. Did he peradventure think him to be weak? Furthermore he had all the Israelites, which so much attributed unto

Abner, that out of all doubt they would have aided David in the punishing of Joab. That which was brought as concerning the delay of punishments, it is already answered. For I say not, that he should straightway have been slain. He should have been taken and cast into prison, his cause was to be known: lastly, punishment was to be executed. But in that he deferred the same even to his death, the delay was over great. But at his death he gave it in charge to his son Solomon. Yea, and David himself answereth far otherwise. Let God judge (saith he.) Truly this is not the part of a Magistrate to cast the judgment of causes upon God. Punishments be like

unto medicines: those are not to be used except when they may profit. But if they had not profited Joab, yet might they have profited others. God differeth punishments: therefore David also doth rightly differ them. But the doings of princes must not be compared with the doings of God. For God is eternal, and immortal, but a prince may die. And what if he die tomorrow?

Who shall then take punishment of the wicked? But God if he do not take punishment today, yet will he take it tomorrow, or when he himself will.

And further, he hath a through trial of all men's minds, and he seeth for what cause everything is done. But unto men is permitted no mitigation in the law of God. Saul forgave: I grant, nevertheless of his own: but David forgave that which belonged to another man. Augustine made intercession for heretics: Howbeit, this he did least the Ethnics should think that Ecclesiastical men prosecute their own displeasures. Further he did not that to the intent he would take away the laws of princes: but that he knew that the Emperors did other whiles permit their presidents that they should have power to remit somewhat of the bitterness of the laws and punishments made by them, if they did think it profitable. But as touching

Circumcellion's, how rightly he entreated for them, let he himself see: For they were both thieves and homicides. We doubtless must live by laws and not by examples. Christ forgiveth sins, and David was a shadow of him. I grant that in deed Christ forgiveth, yet is that in the kingdom of the Church.

But David governed even the political kingdom. Neither is always the Argument firm enough that is taken from figures. For otherwise we will say, that certain harlots, which are mentioned in the holy Scriptures sinned not because they were shadows and Images of the Church. And Christ himself, although he be inclined unto mercy, and forgiveth many things, yet shall he in that last time be a severe judge, and who will not be entreated. And he

shall say unto the ungodly: Go ye cursed into everlasting fire. And altogether in the same state be they also which by reason of the power of men remit excommunication and Ecclesiastical discipline. Howbeit what is to be determined of that, we have declared elsewhere in his own place. But here perhaps some man will object: that David is accused of us without a cause, for that he in this matter, as at many other times, followed the guiding of the holy Ghost, and for that cause sinned not at all. Nevertheless,

I am not wont willingly to use this kind of excuse, unless I see that the thing which is done against the common law, be allowed by the holy scriptures.

Further I do not here contend against anything, but the excuse of David. For he said not that he was led by the impulsion of the holy Ghost: but that Joab was mighty and gracious with the soldiers, and might not be kept under by the laws. This excuse do I say must not be received.

22. Howbeit, seeing they seem to be reproved which do judge others (and truly not amiss, seeing they also are infected with the same faults,) let us see whether they judge rightly which think that Judges cannot nor ought not to exercise judgment against others which are accused, when they be guilty of the selfsame crime themselves. But this were to overthrow all publicwealths, and utterly to take away judgments. Neither is that Paul's meaning in the second Chapter to the Romans: but he only showeth, that they sin most grievously, which with a great severity punish others, and over-slip themselves. Doubtless they ought first to correct and amend themselves.

Nevertheless Paul biddeth them not to forsake the office committed unto them. They use also for this purpose to cite the saying of Christ, unto them which accused the adulterous woman: He which amongst you is without sin, let him cast the first stone at her. And yet this sentence of Christ is not against just punishments, and lawful judgments. Neither commanded he

them that they should not proceed in accusing of the woman, whom they had taken in adultery. He himself was no Magistrate, but the most high preacher of God. Wherefore that which was his office to do, he executed, in persuading those hypocrites to repentance. And he would first have had them provide, that by a lively faith and repentance they should first have rid themselves from the sins whereunto they were bound. Neither forbad he but that they should execute that which the law of Moses commanded. He saw that these wicked men in these punishments, were infected with two manner of faults. First in as much as the punishment and pain, which their neighbor was put unto, was pleasant unto them: For by accusing him before the Magistrates and Judges, they privily fulfilled upon him their hatred and enmities. Another fault was their hypocrisy: for that when as they themselves otherwise abstained not from the selfsame wicked acts, yet by accusing of offenders, they made a show, as though they had been zealous of the law. These things Christ endeavored to correct. He condemned not the woman because he was no political Magistrate. He accused her not to the Magistrates because he found her not in adultery. Wherefore, forasmuch as he was not a meet witness, he was not bound by the law to prosecute such an accusation. But that which pertained to his function, he left not undone, since he admonished her, that she should afterward abstain from sin. Likewise, when we see any wicked act done by our neighbors, God requireth not that we should not judge of it according to the nature thereof.

For, Woe be unto us (as the Prophet saith) if we shall call evil, good. That which is evil ought to be judged according as it is. Neither ought we, either to suspend our judgments, or to turn away our eyes from those things which are in very deed evil. But if we shall feel ourselves to be infected in like manner with the selfsame fault: let us descend into ourselves, and with a

due chastisement reprove ourselves. And thereby shall it come to pass, that we ourselves being by repentance corrected, may the more fitly and fruitfully admonish our brother when he sinneth. Neither against this is that sentence in the 7th of Matthew: Judge not, and ye shall not be judged:

Because in that place is not entreated of the taking away of brotherly admonition: but only the curiosity of the ungodly is there reproved, who when themselves abound in all manner of sins, do most diligently search out the sins of other men, not to the intent they would amend them, but because they delight themselves in the multitude of sinners, and think that by fellowship their offense is lightened. The godly are not infected with this curiosity: as they which continually have their eyes fired upon their own sins, and daily revolting's: so that they have no leisure to consider of other men's faults, unless they be offered unto them. Moreover they rejoice not, neither delight themselves in the condemnation of their neighbors: especially that condemnation which is rashly done. For they know that their brother, which pertains unto God, either standeth or falleth to his own

Master. But we entreat now of private men, and not of Magistrates or Pastors: whose part is by office to be inquisitive, touching the life and manners of those which be committed to their charge. Wherefore all men as well subjects as Magistrates ought to judge sins which be laid before them, by admonishing and punishing every man according to his calling, least vices do spread far abroad.

Whether it be lawful to release just punishments which are enjoined by laws.

23. Of this question there be many Arguments on both parts. For first kings are stirred up unto clemency, which would be done in vain unless they might forgive. Also David forgave seditious men, and sware unto

Semei, that he would not punish him. And Paul commendeth Onesimus, a fugitive servant, unto his Master Philemon and prayeth him to forgive him his fault. And the use was among Christian Emperors that in the week before Easter, when the memory of Christ his death was celebrated, the prisons were set at large. And among the Jews the custom was, that in Easter someone condemned man should be set at liberty by the chief Ruler.

Also Augustine made intercession oftentimes for the Donatists and Circumcellion's, which had not only troubled Religion, but also had done injury to the life and goods of the Christians. Further we read that it was decreed among them of old time, that if a guilty person had fled unto

Churches, he should be without harm. And hereof Chrysostom maketh mention in his Oration against Gainas.

24. Also there want not firm Arguments on the contrary part. For first, it seemeth that a godly work should not be hindered: and it is a godly work to punish the guilty, seeing it profiteth the commonwealth, and taketh away sins. Moreover by this means the office of Princes is hindered. For they bear the sword: which if they use not when time and cause requireth, they do not their duty. Besides: he that releaseth punishments giveth of another's and not of his own, since judgment is the right of God, as it is written in the first Chapter of Deuteronomy. And in the second of Paralipomenon the 19th chapter Jehoshaphat saith: Exercise judgment, not only for man but as it were for God. And the punishments of the law cannot be taken away unless it be by him that appointed them. But God appointed the punishments for sins. Wherefore no man should diminish or take them away. But that God appointed the punishment of death for grievous sins, it appeareth out of the 18th Chapter of Deuteronomy, where it is thus written, that the people desired that God himself would not speak unto them, because they might

not abide so great a Majesty: and for that they chose rather to hear Moses to be the interpreter: that God heard these prayers of the people, and promised not only that he would give Moses unto them, but also would provide that no Prophet should at any time be wanting unto them. A Prophet (saith he) will I raise up unto you from among your own brethren. But he addeth: If any man will not hear that Prophet, I will make inquisition against him.

Howbeit this place proveth not, that that punishment was the punishment of death. More certain is the other place in the 17th Chapter of Deuteronomy:

If (saith God) there shall happen a difficult case, ye shall go up to the high Priest or unto a Levite: and he that shall not hear the voice of the Levite or high Priest, or of the Judge, shall die the death. But that was for changing the state of the commonwealth. Samuel's counsel was demanded as concerning that matter, and he was not only a Prophet but also a judge; they gave not ear unto him therefore they were worthy of death. Indeed, God might have forgiven them, but the Prince could not. Furthermore there is a way opened unto mischiefs, when men promise to themselves, that either through grace or reward they shall escape unpunished. This also may be proved out of the histories. God commanded that all the Amalekites should be slain, Saul spared Agag their King: he was grievously reproved by Samuel, because this was not lawful for him to do. And when the king of Israel had spared Benhadad the king of Syria, whom God had commanded to be slain: Thy soul (saith the Prophet) shall be for his soul. In deed the Prince hath power of life and of death. But yet, as he may not punish him that is innocent, so must he not let him escape that is guilty. Yea and the Lord saith: Thou shalt take away the murderer from my Altar, and shalt put him to death. Finally, if this should be permitted unto Princes, judgments of

death would be sold, and the execution of Justice should be at pleasure of the Magistrate. Thus have we Arguments on both parts.

25. But here must we consider, that some laws there be human, and other some divine. And it belongeth much to the state of this question, whether sort they be. For human laws, because they proceed of a weak reason, are never perfect: neither can they comprehend all things, or foresee all chances and circumstances. Wherefore oftentimes, if we should severely and sharply urge the words of the law, many unjust things would be decreed. And so, there is oftentimes need of moderation, and interpretation, and correction of the law. And moderation is the bridle and rule of human laws, when we consider not so much the words themselves, as the counsel and mind of the writer. Furthermore, Lawyers may interpret men's laws if they seem doubtful, either by other laws, or by examples of former judgments, or by the ordinance and custom of the City: or else according to justice and safety of the commonwealth: but to correct or change, or to mitigate a law, is not any private man's part, but the office of the Prince alone, who made the Law. Wherefore Augustine in his Book De vera Religione, A Judge (saith he) ought not to judge of the law, but according to the law: otherwise all things would be bought. The same thing we have in the Pandectes, De legibus & Senatus Consultis. But now can we not say that the laws of God are imperfect so as they contain not all things. For the mind of God is infinite and most perfect. Doubtless it is the part of wise men and divines diligently to weigh and examine the laws of God and to expound some places by other places, to consider the decree and order which the Lord hath made, to discuss things that seem to be repugnant, and to judge of two laws, when both of them cannot be kept, whether is to be preferred before the other. For example: The law is that the Sabbath day must be kept holy: there

is another law that the City must be defended: it so falleth out sometime, that unless we fight on the Sabbath day, the City cannot be defended. Here the better law must be kept, namely, that the safety of the City be defended.

For God saith: I will have mercy, not Sacrifice. And Christ answereth: that it is lawful to do good on the Sabbath day. The Law of God is, that we must obey our Parents. Another law is, that we must obey God: the Parents command something, which is against the law of God: here the better law must be kept: to wit, that we obey God. This is lawful for us in the law of God. But to abrogate or correct, or by moderation to diminish, and put away the law of God, is by no means lawful for us. Wherefore let Pighius take heed what moderation it is by which he teacheth us that we should understand the first precept: Thou shalt love the Lord thy God with all thy heart, with all thy soul, &c. For seeing this cannot be, he saith, that the words of the law must be mitigated by a fit interpretation. Christ gave and instituted his Supper, and commanded that the same should be ministered in both kinds. But the Roman Antichrist saith: that many chances may happen by reason of beards, of diseases, of shedding of the blood: therefore the Cup must be plucked from the laity. God in the holy assembly would have all things to be ministered in the vulgar and known tongue. Nevertheless these men say, that their mysteries must not be rashly profaned: There is no necessity that the people should understand all things: These things must be committed only to the learned and wise. But who hath taught these men this moderation in the law of God? The Jews used only the laws of God, therefore the Princes might not mitigate them by interpretations, but human laws they may, because they be enacted by them.

26. Furthermore some commandments forbid a thing to be done, others command or (as the Schoolmen speak:) Some be affirmative, others be

negative. Those laws which forbid or deny anything, do evermore hold. As for example: we are bound at all times that we shall not steal: that we shall not commit adultery, &c. But those which command anything, although that they also have great strength, yet do they not perpetually bind. If any shall give us a blow upon the right cheek, we are commanded to offer unto him the left. Assuredly we ought always to have a mind ready so to do: howbeit we are not bound at all times, and towards all men thus to do: For this

Christ himself did not, but being stricken, answered: If I have spoken evil, bear witness of the evil. And Paul: God (saith he) shall strike thee thou painted wall. We must thus do when either the glory of God or the salvation of him that hath stricken shall seem to require it. God commandeth that we should come together to the holy congregation, to celebrate the Sacraments and to give Alms. Yet doeth he not command that we should always do these things. But to what purpose is all this? Namely hereunto: God commandeth if any man shall not obey the Judge or the high Priest, that he be slain. This law in very deed bindeth the Magistrate, yet not always, but when it may be done: and sometime it happeneth that it cannot be.

Nevertheless if thou punish not when it may be, thou offendest the law of God. Moreover we must take heed, that the greater good be not hindered by the lesser. Joab was an evil man and a murderer, and worthy to be slain by David. But when David saw that he was able to do much with the army, least any trouble and sedition should arise, he would not lay hold of him.

And it may be that he spared Semei for the self-same cause. In like manner Saul, least any trouble or sedition should arise, or least that the election should be disturbed, would not at that time kill the rebels. For otherwise he might not have forgiven them those punishments which were appointed by

God. Nay rather he could not by sacrifices have purged a sin which had been done with a stretched-out hand and of set purpose.

27. Now let us make answer to the Arguments which are wont to be objected: whereas they say, that Princes are often stirred up unto clemency, it behooveth to understand what is the nature of clemency. And this may easily be understood by the contrary. Cruel is he which in punishing exceedeth measure, through a certain cruelty of the mind, and is not moved at the miseries of men. On the contrary part he is merciful which cannot abide to execute punishments but releaseth them, and that through a gentleness of the mind. And I add: Through a gentleness of the mind: for if he be led by reward or favor or necessity to release punishments, he is not merciful. This virtue (as saith Seneca,) doeth chiefly belong unto Princes, and them which bear rule. For kings, are therefore called pitiful and merciful, not because they be so, but for that they ought to be so. But private men which have no public power of punishing, may forgive many things, yea and oftentimes also ought: howbeit they should not be called merciful, but gentle. And we ought to know, that clemency doeth diminish punishments, not rashly nor by chance: not after a man's own pleasure, but by a right reason. And I call reason, not man's judgment by itself, but that which is framed according to the word of God. For if punishments be released unadvisedly or at a man's own pleasure, now can it not be a virtue, for it doeth violate justice. And virtue is a certain form of right reason.

Clemency doeth make the law somewhat to yield. But severity is by no means turned. And sometime the one is to be used and sometime the other.

If there happen an outrageous cause, severity must be used, not clemency.

Sometime the cause is made the lighter by circumstances: then there is place for clemency. Doubtless clemency, although it bend the common law,

yet doeth it nothing against right reason. Seeing it hath a consideration of the Circumstances, and according to that it appointeth punishments. And when the merciful man remitteth any part of the punishment, this he judgeth that he whom he forgiveth, ought not to suffer anymore. For he respecteth not the words, but the meaning and purpose of the law. Nevertheless when the punishment due is altogether remitted, it is no clemency but pardon, and that is to be hoped for from God alone. Which the Jews also understood when they said: Who is this that forgiveth sins? Yet do the Papists brag, that they and theirs can give a pardon of sins. But thou wilt say: If so the case stand: then might other princes use clemency, but the Jews might not, because they used the laws of God. I answer, that they also might be merciful, yet not otherwise, than where no certain punishment was prescribed by the law of God. In Leviticus and in Deuteronomy it is commanded, That weights should be just, and measures right. He that had done otherwise, was to be punished, yet no certain punishment was appointed. Wherefore in that case there was place for the clemency and severity of the Judge. Another law there was, that he which had deserved to be beaten with staves, should be punished with no more but forty stripes. In this case it was in the power of the judge, that the party should be punished with few or many stripes within that number. There was another law that the servant which had sold himself into the power of another man, should be grievously punished. But if his Master had oppressed him with violence, there was no punishment determined by the laws. Herein also was place for the clemency of the Judge. Wherefore not in vain was clemency often repeated unto the Princes of the Jews. For it was lawful to use the same both in the human laws set forth by them, as I have said, and in the divine laws, so far forth as punishments were not prescribed by the laws.

28. And as touching the clemency of Augustus Caesar, I answer, that that law which we have, Ad legem Juliam majestatis, was human. For by what punishment conspirators must be afflicted, it was decreed by princes, and so that law might be mitigated by him. He judged it would be sufficient, if he had grievously rebuked Cinna: And assuredly we read in that history, that he was greatly vexed: and therefore he judged it better, to remit somewhat of the punishment. But how small a portion must be remitted, just moderation doth declare. But human laws, when they follow the prescript of nature, must be accounted the laws of God: As to put a murderer to death.

Herein must nothing be remitted by the Judge. Doubtless, Clemency is an habit wherewith by the gentleness of the mind we mitigate legal punishments within the limits of Justice. David forgave Semei: I grant, but yet when he perceived that it was not lawful that he should go unpunished, he commanded Solomon that he should not suffer his gray hairs to escape unpunished unto the grave: Nevertheless, it was not expedient for David himself to kill him. For first Semei being of the family of Saul, he might seem to be moved with hatred against his posterity. Further he had confirmed his words of whom he had been called before, a bloody man.

Lastly it was not meet for him to disturb that gladness and gratulation of the people. After this sort he forgave Joab, who had killed two better men. For he saw that he was able to do much with the army: Wherefore he also remitted him unto Solomon. Howbeit it cannot be denied, but that David sinned, both when he absolved Amnon of Incest, and Absalom of parricide.

But what David refused to do, that did God himself afterward by himself.

For Amnon was slain by Absalom, and Absalom being hanged on a tree, was thrust through by Joab with a spear. And whereas Paul commendeth

Onesimus unto his Master Philemon, that serveth not much to the purpose.

For Philemon was a private man, and here was no prescribed law of God, only Paul prayeth him to forgive private injury, which is a common thing unto all Christians. He prayeth (I say) Philemon to let pass his wrath. And that he doth not against the law of God, but according to the same. For in Deuteronomium, there is a law, If another man's servant shall fly unto thee, thou shalt not restore him to his Master, which must be understood: so long as his Master is in a rage and unpatiently disquieted. This was profitable to the Master least he should overmuch feed his wrath: and unto the servant, least he should be overmuch punished, 29. But the fact of the Romans, in that at the feast of Easter they released unto the Jews some man that was bound and condemned, we cannot allow.

For God never commanded, that in their solemnities any guilty man should be released. Howbeit, the Romans by this means curried favor with the Jews, to the intent they might the more easily bear that servitude. The selfsame reason it was why Christian princes in the holy week [of Easter] would open the prisons, and let forth guilty men: insomuch, that they were not very skillful in the laws of God. For if they had been bound for debt, they had forgiven not their own but other men's. Again, if for heinous offenses, this had been to open a window unto mischief. But princes cannot easily hold the mean. And in like case, as they will have the Ministers of the word either to be poor wretches, or else after a sort to be princes and God's, so do they either punish the guilty together with the innocent (as Theodosius did) or else they so spare all men, that nothing is administered severely. And as touching Augustine, in deed I grant that he entreated for the Donatists: yet he denied it not to be lawful for Magistrates to punish

Heretics. But when the Circumcellion's or idle persons became cruel against the Christians, and that the Church was constrained to call for the

help of princes, and that now these idle persons were punished, the Church seemed to be cruel and to prosecute her own injuries. Howbeit Augustine desireth not that they should be wholly forgiven, but only that their blood might not be shed. Yet howsoever it were, the example of Augustine ought not to prejudice any man's opinion, since we live by laws, not by examples.

At this day if a man had killed a Minister, or done a robbery, who would entreat for him? But there was a refuge unto the churches for such as were guilty. Admit it were so, and we also do not take away sanctuaries, for God permitted them. For if the cause be obscure, they may better be there than in prison while the same be known. Nevertheless the cause being manifest,

God himself commanded, that the wicked man should be taken from the very altar and be slain. These be the things which move me to think, that it is not lawful for a prince to forgive the punishment of offenders. And assuredly the wise men have always held that commonweal to be well ordered: where very few things are left to the power of the Judges. But few such things had the Commonwealth of the Israelites. Yet had it some. That which was defined by the laws, was in no wise to be remitted. Let not thine eye (saith God) spare thine own wife that sleepeth in thy bosom.

Of Executioners or Hangmen.

30. Moreover Gideon did for this cause perhaps, drive his son to slay the kings, that he might inflame his heart from tender years, against the enemies of God's people, as it is written of Hannibal, who from a child, vowed himself against the Romans. Or else he did it, to learn him from his youth to obey the law of God: wherein was commanded that the blood of the next of the kin being shed, should be revenged. But might not this have been committed to an executioner? Why would he so urge his son? To this we may answer two ways: First that in the old time it was not dishonorable

to slay the guilty. Further that it cannot be perceived, that the ancient Hebrews had executioners. And that this for a certainty was no office among the Hebrews, that which is written in the law testifieth: namely that a blasphemer being taken, was so stoned to death, as the hand of the witnesses did throw the first stone at him: neither was putting to death committed to any particular executioner. And there are many examples which testify that it was not ignominious to slay the guilty. Saul, when he would have the priests slain, did not call executioners to do it, but turned to the noble men which were with him, and commanded them to assail the Priests: Who reverencing their Ministry, and dignity, durst not obey. Only

Doeg the Edomite, was bold to execute so horrible an act, who was not of the least estimation with the king. Also Samuel with his own hand slew king Agag the prisoner. In like manner, Joab when he had caught hold of the horn of the Altar, was slain of Banaia the chief captain of the host.

Wherefore it seemeth that the Hebrews in those ancient times had no executioners. But as much as may be gathered by the History of the Ethnics, the officers of punishments, called Lictores, began at Rome under Romulus, who (as Plutarch writeth in the life of Romulus) were called so, either of Ligando, that is, of binding, or else because the Grecians called them λειτούς, or λειτουργούς, for that they executed a public office. Romulus gave them rods bound together to carry, and with them was joined an Axe.

They had also cords therewith to bind the Citizens, who being bound, they might either beat them with rods, or strike them with the Axe. But the men of more ancient time wanted this office: every man executed the same, according as it was commanded of the Magistrate without any infamy unto him. And in very deed, that work of punishing malefactors hath in it no dishonesty or uncomeliness. For if it be honest for a Judge or Prince to give

sentence of death against evil doers, why then shall it not be just and honest to execute the same sentence? Yea and God himself in punishing, useth not only evil spirits, but good spirits.

31. But thou wilt say: why are officers of punishment and executioners commonly so evil spoken of? First because the common people are greatly afraid of them: Neither would any man be punished for his wicked facts.

Hereby it cometh, that the sight of the Executioner, driveth a certain horror into them. And that the people were so affected, the manner of the publicwealth of Rome declareth, where, when ambitious men flattered the people more than was meet, they banished the executioner from the judgment place, from the sight of men, and from the chief house in Rome, as even the Oration of Cicero for Rabirius doth testify. The Citizens of Rome were not beaten with rods, nor put to death. Their extremist punishment, was banishment. They were carried into Islands, and at the length condemned to the Mines. But the latter Roman laws, which are in the Digests, did quite disannul this exemption. For in very deed, it was unjust: For a fault worthy of death ought not to be winked at, whatsoever Citizen of Rome were

Author of it. And there were two principal laws, whereby the back and the head of the Citizens were provided for, I mean the law Portia and Sempronia, whose power and protection Paul (as we have it in the Acts) used, and by that means escaped both rods, and bonds. This is one cause why the officers of punishment and executioners are so odious.

32. Another cause hereof is the papistical opinion of irregularity, which (as the Canonists will have it) is gathered of every manslaughter. These men think, that a man cannot so justly kill any man, but that the same will let him from being promoted to the holy Ministry, whereas nevertheless the Inquisitors of heretical lewdness (as they call it,) do daily cause an infinite

number, and those innocents, to be killed. The Popes Legates also in governing of Cities and provinces and making of wars, although they be

Cardinals, and Bishops, do still continually cause blood to be shed. But in the meantime with great hypocrisy they provide that the sentence be given by a lay Judge (as they call him,) and so they wrap themselves out of that irregularity. Howbeit the holy scriptures do not so teach. Moses said unto the Levites, which with him had killed so many: Ye have consecrated your hands: So far was it off, that they should be deprived of the holy Ministry.

But thou sayest that David was in old time forbidden to build the Temple for his shedding of blood. But in this place we must mark the mystery wherein Solomon shadowed Christ the peaceable king. Seeing by him he was expressed, who without weapons hath gathered together the Church, being the true Temple of God, unto the true and everlasting peace.

Nevertheless blood being justly and rightly shed debarreth not from the holy Ministry. For Phinehas who held the high Priests office, thrust through two most impure whoremongers. Elias, a man of the stock of the Levites, slew with his own hand the Prophets of Baal. And Samuel a man of the same Tribe, did himself kill Agag the king, and yet neither of them both were rejected from their office. Neither do I therefore speak these things to commend the promoting of Men-killers unto holy orders: but this only I oppugn, that every slaughter and every man-killing maketh not a man so irregular (as these men say) that he cannot be ordained a Minister of the Church. What if a man have been a Judge or Magistrate, or in just war hath fought for his country: cannot he straightway therefore be ordained a Minister of the Church? Peradventure he hath obtained excellent gifts of God, and is endued with singular learning, adorned with a pure life, instructed with dexterity of government and with godly eloquence: cannot

the Church (as these men most absurdly think,) use his gifts? Certainly that was not observed in Ambrose: He was servant unto Caesar, and decided matters in the law, being Pretor of Millaine: And yet was he suddenly taken perforce to be a Bishop. I know that Paul requireth that a Bishop be no striker, yet no man doubteth but that this must be understood of an unjust slaughter or violence. But what should a man here do? All things are by the Papists handled superstitiously.

33. Finally, the third cause why officers of punishment and executioners are evil spoken of, is this, because very many of them live wickedly and dishonestly, and have before time been naughty men. Howbeit the office doth not dishonest them: but they rather by their fault pollute an excellent office. Aristotle in his 6th Book of Politics the last Chapter saith, that good men abhor this kind of office: namely, of punishing of men, because it hath an hatred annexed unto it. For they oftentimes incur the hatred of men.

Howbeit in my judgment, a good and godly man ought not for that cause to mislike of his office. I remember an answer of Chrysippus, who being demanded, why he exercised not the office of a Magistrate: If I exercise it not rightly (said he) I shall displease God: and yet if I do it rightly, I shall displease men: but I will neither of both. Unto some he seemed to have answered very prudently, but me thinketh he answered foolishly. For he should rather have answered contrary; that the public-wealth ought to be governed and that rightly, to please both God and good men. Doubtless a wise and good man should have no respect unto wicked men. By these things it is now manifestly showed that Gideon, in that he by himself killed the Kings of Madian, committed nothing that was unfit for him: neither that he commanded his son to do a dishonest act.

Of Sanctuaries called Asyla.

34. But because it is written that Adonias caught hold on the horns of the Altar, and the very like also is read of Joab, therefore it seemeth good to entreat somewhat of Sanctuaries: wherein is granted a liberty to them which fly thither for refuge. They call a Sanctuary a holy thing or place, from whence it is not lawful to draw any man by violence. If we give credit to Servius the Grammarian, upon the 8th Book of Aeneids, the Noun is derived from α a Particle of depriving, and σύρειν, that is, to draw, and by an ill pronunciation ρ is changed into λ: or else of the verb συλᾶν, that is, to take away. As Homer useth it [in these words:] ἀσύλων τεύχεα καλά, that is, drawing goodly Armor. Howsoever the name is derived, we will not much strive. But yet this I will not pass over, that hereof cometh the word ἀσυλία, that expresseth the right which they enjoy that fly unto Altars, Images, and Temples. Whereupon is vaunted that saying, εἰς τον Θησεῖον καταφεύγοντες ἀσυλίαν εἷχον: that is, They that fled into the Temple of Theseus had the right of Sanctuary. Certainly, the Temple and the Image they called ἄσυλον. Pollux saith, that the common criers or Heralds at Arms were ἄσυλοι, that is to say, safe men, so that where soever they were, they should be kept inviolate. Plutarch saith in his Problems of the Tribune of the people: They made him both holy and also ἄσυλον, that is, inviolate, neither was it lawful for any man to lay hands upon them.

35. But the beginning of Sanctuaries they affirm to be by the Nephews of Hercules. For when he was departed out of the world, they feared the violence and disquietness of them whom their Grandfather had afflicted.

Wherefore at Athens, they built the Temple of mercy: and they caused a decree to be made, that they which fled thither for succor, might not be pulled away from thence. Thereof doeth Statius make mention, saying: The fame is, that the Nephews of Hercules built a habitation, &c. Livius writeth,

that Romulus and Remus, after Rome was built, opened a Sanctuary between the Castle and the Capitol, in that place which was called

Intermontius. So many as came thither, though they were wicked men, obtained freedom from punishment. Unto what God that place was consecrate, it is doubted. There be some which think it was dedicated unto

Veiovis, but Dionysius Halicarnassaeus freely confesseth that he doeth not know. Augustine De Concordia Evangelistarum the 1st Book and 12th

Chapter, condemneth this Act of Romulus and Remus, in respect that they for the advancement and increase of the City which they had built, should grant impunity to wicked men, and those armed against their own Country, whose laws they feared: and thereby for a reward of flying away obtained impunity. We deal not (saith he) by this example in the Church of Christ: wherein doubtless is given a security unto sinners and penitent persons. So then Sanctuaries have been in sundry places, to wit, in Asia, in Greece, in Egypt. At Rome it was decreed afterward, that the Images of the Emperors should be sanctuaries. Wherefore Philostratus saith: The Sanctuary of the Image of Tiberius. Furthermore such an immunity was translated unto the temples of Christians, unto Abbeys and Monasteries. For when Princes had dedicated their name unto Christ, they gave unto holy houses those privileges which sometimes had belonged to Idolatrous Temples and Idols, because they thought that Sanctuaries be so necessary a thing unto the society of men, as without them the commonwealth might not consist. Then seeing it behooved to have those, they committed that honor unto Churches.

But if antiquity of time should be sought forth, we must rather go unto Moses than unto the Nephews of Hercules. For Moses was of more ancient time than they. He doubtless in many places of his laws, hath made mention of Cities of refuge. And in Exodus the 21st chapter he commanded in the

name of God that manslayers, which willingly and of set purpose had slain any man, should be plucked from the very Altar. But if any man had unwittingly and unwillingly slain a man, he promised to give them Cities of refuge, which in the 25th chapter of Numbers he performed, when as now the Israelites had occupied the kingdoms of Og, and Seon, and had given them to the Tribe of Gad, Reuben, and to the half tribe of Manasseh.

Moreover three Sanctuaries were there appointed, to wit: one in the Tribe of Gad, another in the Tribe of Reuben, and the third in the half Tribe of Manasseh. Whereof in like manner, there is plain mention made in the fourth Chapter of Deuteronomy. Further, when they were past over Jordan, other three sanctuaries were opened by Joshua: that is to wit, in the Tribe of Naphtali, Judah, and Ephraim. But in those they obtained not impunity except such as by chance and unwittingly had killed a man. The Cities were called Hamiclat, because they to whom such a thing had happened, did gather and assemble there together. For the verb Calat signifieth to draw together and to draw to. Whether the Sanctuaries of the Ethnics had a prescribed time, wherein they flying thither might there remain, it appeareth not to me. Howbeit I think they were to remain there, until matters were taken up between the parties. But the Sanctuaries of Moses prescribed that it should not be lawful for such as fled thither, to return home, unless it were at the death of the high Priest. Which ordinance (no doubt) was mystical. For thereby was shadowed, that our return into the heavenly country happeneth to us by no other means than by the death of Christ.

36. Now let us recite the causes for which the use of sanctuaries hath been thought profitable: and on the other side, the harms and impediments of them. For those things being known, we shall perceive, whether it be profitable that Sanctuaries should be open in our times. Very many causes

of the commodity of them are reckoned, and those no slight causes. First it cometh sometime to pass that the cause is doubtful, and that the interpreters of laws, do follow rigor more than is meet, and he that is in the state of judgment sometimes perceiveth that the Judge is angry with them, and that his adversary is very mighty. Hereupon the guilty man feareth, least that either by the wrath of the Judge, or by the power of the adversary he should be oppressed, and so it is better that he should lie secrete for a time, until men's minds be appeased, and the laws somewhat more gently interpreted: that if it should be otherwise done, the guilty man might straightway be apprehended and rid out of his life, upon no very just causes. Furthermore, servants by that ordinance found a great commodity. For Masters which had bought them, did other whiles rage most cruelly against them: So that when they perceived them to be kindled with wrath against them, they fled unto

Sanctuaries, and there called for the help of Magistrates. The cause was inquired of, and a Caveat of immunity being put in, they were reconciled unto their Masters. Or if a master had been found over cruel or of unchaste life, who would endeavor to constrain his bondman or maidservant unto dishonest things, he was constrained to sell his bondservants, and so he lost not the value but the dominion over them. And those were not accounted fugitive servants, as we read in the Digestes, De Edicto Edilitio, in the law

Fugitivus. Moreover, Sanctuaries were profitable in the time of war: for when a City was to be taken, and that there appeared no aide: those that were besieged, did fly unto the Temples, and that did no small deal profit the Romans, when the City was taken forcibly by Alaricus; since all those which fled unto the Temples of Peter and Paul were saved. Moreover the commodity is manifest, which is gathered out of the laws of Moses as touching manslaughter coming by chance. The cause might not straightway

be tried: therefore it rested that it might be known, and that the Judges might decree, whether the homicide were willful or whether it were committed by chance. But if so be that Cities of refuge had not been given, the danger was least the revenger of blood, to wit, the next of kin unto him that was dead should slay the mankiller before the cause were lawfully known. Yea and some also be far in other men's debt and have not wherewith to pay. And some laws be very strait, and decree: that where he hath not to pay in money, he should bide punishment in body. Wherefore, they cast those poor wretches into bonds and prisons. So that it is profitable to have a sanctuary, to the intent the matter may be moderately agreed upon by certain conditions. I will not forget that in the time of Basel it happened

(as Gregorius Nazianzenus reporteth thereof in his funeral Oration) that a head ruler of Valence the Emperor, had an associate who loved inordinately a certain noble woman, and was desirous to marry her: but she refused. The ruler assisted his associate. Whereupon violence was prepared to be done unto the afflicted woman: and therefore she fled unto the Church. Basel protected her by right of Sanctuary which was granted to Churches and Altars. Princes having a respect unto these commodities, not only granted these privileges unto Churches, but they also provided by laws, that whosoever should violently draw away any from thence, they should incur the crime of Treason, as we have it in the Code De ijs qui confugiunt ad

Ecclesias, in the law Fideli. Wherefore they held this for a crime of death.

But on the other side there followed thereof many harms and discommodities, which I think good in like manner to rehearse.

37. Thereby it cometh oftentimes to pass, that Masters be despised by their servants, if they upon hope to escape punishment do fly unto

Sanctuaries, and there remain many days, in which time their masters

without doubt are constrained to be destitute of the duties and necessary service of them. Herewithal thou mayest add, that men do then more freely sin, if they have Sanctuaries ready whereunto they may fly. This did

Tiberius Caesar prudently perceive, who, as Suetonius and Tacitus report, being displeased at so great a liberty, took away the privileges from all sanctuaries. It was come to pass (as Plutarch saith in his Problems) that the Priest of Jupiter stood before the gates of the Temple, and they which came and fell down at his feet should be out of danger, and if they had been bound, they were straightway loosed. After the which manner also, many temples of the Papists at this day become dens of thieves. For they which be indebted, by keeping of themselves there, be nothing careful to satisfy their

Creditors, they shun labor, and behave themselves ill in such Sanctuaries.

There happeneth another mischief, that they which are come thither and their cause known, are found wicked men, and do escape by the help of the Monks and Priests: and by this means grievous crimes are left unpunished.

Yea and the Commonwealth itself is oftentimes by the like manners troubled: to wit, when as in such Sanctuaries those that be guilty of treason be defended: as Adonias who hurt the commonweal, and by reason of the Altar remained without harm.

38. That immunity in such kind of crimes was granted unto those which fled to the Church, Socrates testifieth in the fifth Book and 6th Chapter of his history, where he showeth that Eutropius one of the noble men of Arcadia, desired very much to be revenged of them which fled unto the Church. And seeing that was not lawful for him by the law, he wrested a decree from the Emperor, whereby the right of Sanctuary of the Church, was abrogated. But within a while after it happened that the same Eutropius himself with certain men of his, incurred the indignation of Caesar.

Wherefore least he should be apprehended, he went to the Church, which thing did not profit him. Against the same man, Chrysostom inveighed in a Sermon, saying, that the Church could not defend him who took away the privilege thereof. And because Justinian saw that the same so large and ample immunity did hurt the Commonwealth, therefore he restrained the same, as we may see in the Authentics, in the Title De Mandatis Principum, the Paragraph Quod si delinquentes, where he excepteth homicides, adulterers, and those which ravish virgins. For he writeth unto his lieutenant, that he should in any wise punish such, and should not suffer them to enjoy any privileges of Sanctuary. This law being otherwise firm and of good authority hath the Bishops law disabled. For in the Decretalles

De Immunitate Ecclesiae, in the chapter Inter alia, Innocentius the third wrote unto the King of Scots: Let none be taken away from the Church though he have committed grievous faults. Further he decreed that they which have betaken themselves to the Churches, if they be afterward delivered, cannot anymore in respect of that crime, be punished with corporal pain, but only by some other civil punishments. And before that the rulers of the Church do render them, let them receive an assurance from the Magistrates that they do not put them to death.

39. But least they might seem to give too much liberty, they excepted three cases. First they will not have common thieves to be defended, who lie in wait upon the highways. Secondly, Robbers by the night, which spoil the fields. Thirdly they which commit heinous offenses in the Churches or the Churchyards, being animated upon hope that they shall there be without harm. For such are not protected by the Church, seeing they do grievously sin against the Church. This is decreed in the decretals, De Immunitate

Ecclesiae in the law Immunitatem. And as touching servants, they decreed,

that if they shall fly unto the Church being armed, they shall not be received. That also we have in the Code De ijs qui confugiunt ad Ecclesiam, in the law, Si Servus. Howbeit if young men go thither and seek advocates in the Church, they are received: their Masters are called, who assuring them of impunity, take them into their hands again. But other faults although they be grievous, as murders, ravishing of virgins, and adulteries, they defend: as it is in the decrees 36th quest. 1st in the Canon De raptoribus. And that immunity they give not only unto Christians, but also unto Jews, so that they dissemble not: So do they in like manner unto

Ethnics, and also unto men excommunicate, and unto heretics. But they make a difference after this manner: If an heretic come into peril for other faults, he is defended: but if for heresy itself, he enjoyeth not sanctuary.

Furthermore this liberty is not only granted unto the Church, but also unto a Bishops house, although it be not joined to the Church. Which thing is in the decrees. 17th quest. 4th in the Canon Id constituimus. As much privilege also they grant to their breaden God, when it is carried about either in pomp, or unto the sick. For then, if they take hold by the priest, they have sanctuary. Nevertheless, they which live in a sanctuary, and have obtained privilege, may there deal with their adversaries. But if they owe anything, and be indebted to the common treasure, the Canonists in that case decree that it is lawful for Judges to cite that man before the Church door: if he will satisfy, it is well, if not, they proceed to the possession of his goods, which afterward they sell, and withhold, until all the debt be discharged.

But if so be they owe not unto the common treasure, but to other men, they have respite given them for thirty days, wherein they may go forth and seek some Patron. But if sentence be pronounced against them, they are

constrained either to stand to the judgment, or else to return to the sanctuary.

40. Also in the time of war they will, that the rite of sanctuary shall be of force, to the intent that they which fly unto the temples may not be killed by the enemies: unless perhaps they make the Temple their hold, and do fight from thence. Very many such like things they have which very often do turn to great wickedness. But yet they themselves do judge, that this immunity must by all means be retained. And in deed some of the fathers, and some

Councils do seem to be on their side. Of Basil and Chrysostom, we have already spoken before. Augustine in his 1st book De civitate Dei, the 7th chapter, compareth the sanctuary of the Empire of Romulus with the Temples of the City of Rome: in which in the time of Alaricus a barbarous king the Christians had immunity. For when he had taken the City of Rome by force, he would have them all to be safe, which fled for succor unto the Temple of Peter and Paul. Romulus (saith he) opened a sanctuary, to increase the number of Citizens: Alaricus to preserve a multitude of his enemies, which is more to be praised. And in the same book the 4th chapter he saith that the sanctuaries of Christians were of far greater power than those of the Ethnics. And again, he useth the example already alleged. And he added, that the Christian sanctuaries were able to defend the Romans being now Captives: but the sanctuary of Juno, which was at Troye, was not able to defend the Troyans from the Greeks: As Virgil uttered in the second book of his Aeneidos:

The Temples great were spoiled, and Juno's holy doors were brast, Both Phoenix and Ulysses false, with them their train about:

The pray did keep, and Greeks to them the Troyan riches brought.

Yea moreover it is said that the same Alaricus restored much of the gold which was taken out of the Vatican. When Boniface the Earl, which under the Romans governed Africa, had taken one by force out of the Church of Augustine, Augustine in his 187th Epistle to the same Boniface writeth, that he wondered very much that he plucked a man from them, and he willed him safely to restore the party, with all convenient speed. And he addeth, that he commanded his Clergy men, that they should not take any offerings out of his house, and that he had now excommunicated him. This also we have in the decrees 17th quest. 4th in the Canon, Miror. And in the 188th

Epistle, the same Earl made a very lowly answer unto Augustine, whom he very much loved, acknowledging that he had grievously sinned. Behold

(saith he) I now restore the man whom I took away: yet let it be known to thee, that he is most worthy of death. Wherefore we see that grievous offenses in the Church, had defense in right of the sanctuary. In like manner the Councils greatly favored sanctuaries. The Council of Arausicanum, chap. the 5th decreed that none should be plucked away from the Church.

The 4th Council of Aurelianensis, chap. the 21st not only commanded that this rite should be retained by the Bishops, but will have them to be excommunicated, which shall neglect to do it. The 12th Council of Toletanus, chapter the 10th giveth for sanctuaries 30 paces about Churches which be of the lesser sort. But unto the Metropolitans it giveth forty. The Councils of Ilerdenum, & Triburiensis, decreed in a manner the same things.

41. What shall we then judge? Must sanctuaries be retained, or abrogated?

I forasmuch as I perceive that the law of God retained sanctuaries, but yet of very strait liberty, and do see also that the laws of Nations instituted them: and that other whiles there may be just causes of them, therefore I

would determine that they ought to be retained, certain cautions being observed. First, that no private or public things be hurt by that liberty.

Secondly, that no injuries be done to any man, or else vices nourished and maintained through the hope of pardon and impunity. Further, it seems that we ought to take heed, that they be not open unto all kind of crimes, but that they be granted for some certain men: as when one man hath killed another, neither wittingly, nor willingly. Or else, if a good man without his own fault by the injury of fortune, shall be burdened with debt, or in such like things.

But to grant sanctuaries for all crimes, it is far from godliness. Again, it were good to be decreed, that they should not be many and much frequented, that men may behave themselves the more circumspectly and gravely in their dangerous actions. The old law had only six in the whole kingdom of Israel. But in our Regions there be always many. For the Canonists have marvelously endeavored to enlarge that liberty.

Notwithstanding it should be the part of a good magistrate to restrain the number of them. Also it ought to be provided that they which be detained in sanctuaries, when by judgment they be found guilty might not easily scape away: And that the priests or Monks if they make a way for them to escape, should undergo certain punishments. Howbeit it is come to pass that they themselves also are Sanctuaries, as being men that have extorted and usurped sundry forms of exemption.

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